Complainant is Humana Inc., Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America.
Respondent is The Lichtenstein Group, Gary Lichtenstein, Austin, Texas, United
States of America.
2. The Domain Name and Registrar
The disputed domain name <humanachoiceppo.com> (the “Domain Name”)
is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 26, 2006. On April 27, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the Domain Name at issue. On April 27, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 5, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 25, 2006. The Response was filed with the Center on May 25, 2006.
The Center appointed Harrie R. Samaras as the sole
panelist in this matter on June 6, 2006. The Panel finds that it was properly
constituted. The Panel has submitted the Statement of Acceptance and Declaration
of Impartiality and Independence, as required by the Center to ensure compliance
with the Rules, paragraph 7.
4. Factual Background
Complainant is one of the largest publicly traded health benefits companies in the United States that offers a diversified portfolio of health insurance products and related services through traditional and consumer-choice plans to employer groups, government-sponsored programs and individuals. Complainant has used the mark HUMANA since at least as early as 1973. It owns a number of registrations issued by the U.S. Patent and Trademark Office (“PTO”) for HUMANA including Registration No. 1,305,479 for use in connection with hospital services and healthcare services and Registration No. 1,576,782 for use in connection with health insurance administration services; health insurance brokerage services; health insurance underwriting services and health care services through health maintenance organizations. It also owns pending U.S. trademark application Serial No. 78/574,307 for HUMANACHOICEPPO, for use in connection with underwriting, organizing, and administration of health insurance plans, dental plans, and drug plans; underwriting, organizing, and administration of preferred provider health care plans, dental plans, and drug plans and preferred provider health care plans, dental plans, drug plans for Medicare enrollees and health care services in the nature of preferred provider organizations as a substitute or replacement for Medicare. Complainant has been using the mark HUMANACHOICEPPO in commerce in the United States in connection with the services identified in Serial No. 78/574,307 since at least as early as November 30, 2004.
Complainant also owns registrations for well over one hundred domain names consisting of or incorporating Humana as the second level domain, including without limitation <humana.com> and <humana.net>.Complainant’s website located at “www.humana.com” logged the following traffic in 2005: 5,735,333 unique visitors; 36,950 average visits per day; 1,297,629 average hits per day; and 82,088 average page views per day.
The HUMANA mark is a coined term not appearing in any dictionary. Complainant
promotes its HUMANA mark extensively through advertising in various media, including
(a) placements in major U.S. newspapers, such as the Chicago Tribune
(daily circulation 679,000), Denver Post (610,000), Atlanta Journal
(424,000), Dallas Morning News (586,000), and Wall Street Journal
(615,000); (b) regional placements in major U.S. magazines, such as Business
Week, Forbes, Fortune, FortuneSmallBusiness,
Inc., and Money; (c) network and cable television spots in over
twenty U.S. markets; (d) radio spots in Atlanta, Chicago, Houston, Indianapolis,
and Louisville; (e) exhibits at about 35 trade shows annually, with over 10,000
attendees; and (f) Complainant’s own website located at “www.humana.com”.
Current advertising expenditures are in excess of U.S.$20 million per year.
The HUMANA mark is further publicized through co-promotions with other companies
and organizations such as the PGA Tour and Champions Tour.
5. Parties’ Contentions
A. Complainant
The Domain Name is identical or confusingly similar to Complainant’s HUMANA and HUMANACHOICEPPO marks and its <humanachoiceppo.com> and <humana.com> domain names. Respondent has no rights or legitimate interests in the Domain Name. Respondent registered and is using the Domain Name in bad faith.
B. Respondent
On May 5, 2006, the Respondent sent an e-mail to the Center in which the Respondent consents to transfer the domain name:
“I do not object to the transfer of this domain name <humanachoiceppo.com> to the Complainant and if a specific response by me would make that happen and conclude this matter I will be willing to make that response but I am unaware of the required form of such a response.
If this response should qualify, I hereby agree to transfer the domain, <humanachoiceppo.com> to the Complainant.
Thank you for your assistance.”
Then on May 25, 2006, within the time that the Center provided for filing a proper response, Respondent filed a formal Response which echoed the same willingness to transfer the Domain Name as in the correspondence cited above:
“The Respondent hereby responds to the statements and allegations in the Complaint and agrees to permit the transferal of registration to the Complainant. The Respondent respectfully requests the Administrative Panel to allow the transfer of the registration as requested by the Complainant.”
Furthermore, in the formal Response Respondent admitted that the Domain Name
is identical or confusingly similar to “a trademark or service mark in
which the Complainant has rights,” and that it has no legitimate interest
in the Domain Name. Respondent confirms that the Domain Name was registered,
but claims that: “The domain name was never directed to a live website
owned or controlled by the Respondent and was never made public. No attempt
was ever made to discredit the Complainant nor create ill will toward the Complainant.”
Respondent summarily denied participating in the activities enumerated in paragraph
4(b) of the Policy that are to be considered as evidence of the registration
and use of a domain name in bad faith.
6. Discussion and Findings
In light of Respondent’s unequivocal willingness
to have the Domain Name transferred to Complainant and its admissions, it is
not necessary that the Panel elaborate further. See Deutsche Bank AG v. Carl
Seigler, WIPO Case No. D2000-0984
(November 4, 2000). Had the Panel been required to make substantive findings,
the Panel would have concluded on the evidence of record including Respondent’s
admissions that Complainant had satisfied its burden that (a) the Domain Name
is identical or confusingly similar to the HUMANA and HUMANACHOICEPPO marks
and the <humanachoiceppo.com> and <humana.com> domain names; (b)
Respondent has no rights or legitimate interests in the Domain Name; and (c)
Respondent registered and is using the Domain Name in bad faith. Therefore,
the Panel concludes that the requirements of Paragraph 4(a) are satisfied. See
eMusic.com, Inc. v. Mp3DownLoadCity, WIPO
Case No. D2004-0967 (March 1, 2005) (panel concluded that the requirements
of Paragraph 4(a) of the Policy were satisfied where respondent consented to
the transfer of the domain name at issue); Lonely Planet Publications Pty
Ltd. v. Hoang Anh Minh and cicvn.com, WIPO
Case No. D2003-0355 (August 18, 2003) (panel concluded that the requirements
of Paragraph 4(a) of the Policy were satisfied where respondent consented to
the transfer of the domain name at issue and the facts of the case); Desotec
N.V. v. Jacobi Carbons AB, WIPO Case No.
D2000-1398 (December 21, 2000) (panel concluded that the requirements of
Paragraph 4(a) of the Policy were satisfied where respondent consented to the
transfer of the domain name at issue and the facts of the case).
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <humanachoiceppo.com> be transferred to the Complainant.
Harrie R. Samaras
Sole Panelist
Dated: June 20, 2006
Stay updated! Get new cases and decisions by daily email.
